Bateman v. Board of Com'Rs of Improvement Dist. No. 1

• Decision Date: 12 February 1912
• Citation: 143 S.W. 1062
• Parties: BATEMAN v. BOARD OF COM'RS OF IMPROVEMENT DIST. NO. 1 OF CITY OF CLARENDON.
• Court: Arkansas Supreme Court

143 S.W. 1062

BATEMAN v. BOARD OF COM'RS OF IMPROVEMENT DIST. NO. 1 OF CITY OF CLARENDON.

Supreme Court of Arkansas.

February 12, 1912.

Appeal from Monroe Chancery Court, John M. Elliott, Chancellor.

Suit by H. B. Bateman against the Board of Commissioners of Improvement District No. 1 of the City of Clarendon. From a decree sustaining a demurrer to the complaint, complainant appeals. Reversed and remanded, with directions to overrule the demurrer.

H. B. Bateman, for appellant. Rose, Hemingway, Cantrell & Loughborough, for appellee.

McCULLOCH, C. J.

An improvement district has been duly formed in the city of Clarendon, Ark., for the purpose of constructing a system of waterworks and sewerage, and appellant, a citizen and owner of real property in said district, instituted this action in the chancery court against the board of improvement to restrain the latter from entering into a contract for the construction of said improvement at a cost in excess of 20 per centum of the value of real property in the district, and from issuing bonds in excess of said amount. The chancery court sustained a demurrer to appellant's complaint. It is alleged in the complaint that the board of improvement will, unless restrained from so doing, enter into a contract for making such improvement and issue bonds for the full amount of the cost thereof, and that the interest on the bonds will make the costs of the improvement exceed 20 per centum of the assessed value of real property in the district.

The statute regulating improvement districts in cities and towns provides, among other things, that "no single improvement shall be undertaken which alone will exceed in cost 20 per centum of the value of the real property in such district as shown by the last county assessment." Kirby's Digest, § 5683. The question presented is whether interest to accrue on bonds issued to defray the expense of construction is, within the meaning of the statute, to be included as a part of the cost of the improvement. This court has already decided the question in the affirmative. Fitzgerald v. Walker, 55 Ark. 148, 17 S. W. 702.

It is insisted, however, by learned counsel for appellee that the case cited above has been overruled by the recent case of Webster v. Ferguson, 95 Ark. 575, 130 S. W. 513. We do not think so. The question of cost of improvement in excess of the statutory limitation did not arise in the latter case. The question there was whether the statement in the petition of the property owners, which limited the cost of improvement to a certain amount, included interest, and we held that the statement of the amount referred to actual cost of improvement, exclusive of interest.

It is next contended that the decision in ...